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Big sports news this week is the effort underway by Northwestern athletes to seek collective bargaining rights. Northwestern Law prof and employment law expert, Zev Eigen, offers his interesting perspective on this development;

By: Zev. J. Eigen

Kain Colter is a senior at Northwestern University. He has been the co-captain of the school’s football team for two years now. He plays quarterback. How would he describe himself in relation to the school? Would he call himself a student attending a university to receive a college education? Or, would he call himself an employee of Northwestern?

That question will likely determine whether Mr. Colter and a group of athletes at Northwestern will be allowed to form a union under the National Labor Relations Act (“NLRA”). That is the federal law that says that only “employees” may form unions in the private sector.

Ramogi Huma is the president of the newly formed College Athletes Players Association. He is assisting Mr. Colter in his efforts along with the United Steelworkers Union in filing the petition with the National Labor Relations Board for recognition of the union. As Mr. Huma pointed out in a radio interview yesterday, the football players “work” for forty hours per week on football, are directed and controlled by the university, and receive “compensation” in the form of scholarship funding directly tied to students’ playing ball. Those characteristics make them seem at least partially like employees, or at least student-employee hybrids. But the National Labor Relations Board has flip-flopped on the issue of whether another category of student-employee hybrids, namely, graduate students (who receive both an education and are directly paid for teaching classes) are primarily students who happen to work, or whether they are employees who happen to be students receiving an education. It’s not clear how the Board will rule on student-athletes like Mr. Colter, who do not receive direct compensation like grad students do, but receive scholarship funding, and are expected to play a sport, not teach classes. As I have suggested elsewhere, I think student-athletes have an uphill battle ahead of them.

Perhaps a more interesting question than how the law will characterize these student athletes is how the law should characterize them. The NLRA is a 1935 statute that regulates the relationship among unions, employees, and employers. It has not been substantially updated at all except in 1947. I think everyone can agree that a LOT has changed about how work is performed and structured in this country in between then and now. Most importantly, the law does not cover independent contractors and other categories of non-full-time work. In the ’30s and ‘40s, these categories of workers were the exception, now they are becoming more of the rule. More workers now are part-time, temporary workers, freelancers, and independent contractors. It would make sense to update the law to extend coverage to categories of work that now dominate the employment landscape. If for no other reason, this would merely extend protections of the NLRA to the approximate percentage of the workforce that the law initially covered when it was passed.

Don’t hold your breath for change in labor law. This is the most polarized area of law one can imagine. There are pro-labor groups, and there are pro-management groups. Both groups have made proposals to update the laws, but these have been dismissed outright as too partisan by the other side. This is an unfortunate form of what negotiation scholars refer to as “reactive devaluation”—when one assumes that anything proposed by one’s counterpart is automatically not in one’s best interest. The extreme dichotomization is a perfect storm for legislative stalemate. Everyone assumes that the other side’s proposals are partisan, and therefore nothing gets changed, and everyone is made worse off. I have discussed this problem in two articles—here, and here.

My hope is that we are headed towards a tipping point. The law’s intentions to protect collective employee voice and to promote “labor peace” will become so attenuated that it would make sense to either scrap the law entirely or amend it to bolster its modern relevance. Efforts like the Northwestern football players, and others, like mixed martial artists, raise awareness of the need for the laws to be modernized to reflect the more fractured non-traditional forms in which many employment relationships now occur.

From Syracuse Chancellor and former law dean, the observation that what is facing legal education is not a crisis but a “management challenge.” Provocative, and not implausible, view that law schools are undergoing processes similar to other sectors of the economy. Less useful, however, is seeing this in abstract terms as a management challenge without undertaking the hard work of describing and proscribing structures for reducing costs and enhancing educational experience.

Also, the optics of having the ABA president along with state court judges is important. The conversation about legal education reform must include many stakeholders. University leaders have especially valuable perspectives; but leaders of the bench and bar are critical to reform efforts as well.

The ALI has had just a handful of directors in its 91-year history, each of them giants in the law. Prof. Lance Liebman, former dean of the Columbia Law School, has served for the past fifteen years. Today, the ALI names a new director, Prof. Ricky Revesz, former dean of NYU Law School. The press release is here.

This is exciting news for this prestigious organization (on whose governing council I am privileged to serve), an organization that continues to be involved in an enormous range of projects involving contemporary law, including torts, foreign relations law, sentencing, sexual assault and native American law.

In southern California for the 41st Annual SRI Conference — perhaps the nation’s premier meeting of securities lawyers and business professionals. I was proud to welcome the distinguished conferees and also to introduce keynote speaker, Mary Jo White, chair of the U.S. Securities and Exchange Commission.

Northwestern Law has partnered successfully with the SRI for many years. It is a brilliant marriage, as it brings together the best and the brightest in the dynamic world of securities law while enabling us to highlight NU Law’s innovative programs in law and business. The SRI represents an important component of our professional outreach efforts.

These outreach efforts are especially critical as law schools respond creatively to the shifting winds of the legal market. Our core endeavor will always be comprehensive legal education for future lawyers. But it will be increasingly vital to connect our initiatives and our talented faculty with practicing lawyers and other professionals in the private and public sectors. The SRI is one particularly wide-ranging and prestigious element of this outreach strategy. And there are many other substantial projects underway.

Professor Tom Geraghty’s work in Ethiopia is well known, but his energies and enthusiasms are not limited only to that country. Last fall, he led a group of law students to Bangladesh, where they worked on an interesting new project called a “Justice Audit.” The audit gathers data about a country’s criminal justice system to create a tool that citizens can use to deeply understand “…how the justice process works, the points of system pressure and associated challenges, as well as opportunities to apply good practices to solve problems.”

The Northwestern Law team worked with the Governance & Justice Group’s ground team in the GIZ (the German development agency) offices in Dhaka for two weeks to coordinate data collection, discuss challenges and findings, and strategize the presentation of the information to the Government of Bangladesh and other stakeholders.

Katherine Klein, a student who worked on this audit, wrote an interesting report about her experiences, which I am happy to share with you here:

“During the fall semester 2013 I was one of four students selected to participate in an intensive senior research project supervised by Professor Geraghty. As a team of five representing Northwestern Law School, we were participating in the second ever Justice Audit conducted by an international legal consulting firm, the Governance and Justice Group, based in Portugal.

A Justice Audit is an intensive, data-rich study of the major justice-seeking institutions in a country, including the courts, legal aid providers, police, prisons, and prosecutors. The Justice Audit methodology, designed by the Governance and Justice Group, gathers statistical information on the flow of cases and individuals through a justice system, to show governments and policy makers what is happening at any given time. It is hoped that governments and policy makers will use the data as a catalyst for changes they see necessary in their own system.

In addition to gathering institutional data, the Justice Audit included practitioner surveys of many personnel such as judges, police officials, and detainees, as well as a 6,000-person survey to gauge citizen perceptions of their options for seeking justice and resolving disputes.

As participants in the Justice Audit methodology—the first ever with both student and academician participants—none of us knew what to expect. From workload, to in-country fieldwork in Bangladesh, everything was abstract and always a moving target.

At the outset of the semester we began an intensive desk review phase to learn as much as possible about the legal landscape in the country before arriving. The desk review was fascinating. Pouring over Bangladeshi statutes forced us to ask critical questions about the components of a functioning and efficient legal system. Such a critical, intimate look into another legal system is a rare opportunity in legal education.

As the political situation heated up, and eventually began to boil over in Bangladesh, our departure for five weeks of fieldwork was delayed. Although everyone was disappointed at the delay, the desk review continued, which was probably for the better as it was such a large task. The delay, much like the eventual time in Dhaka, was a good lesson in the realities of international legal consulting work. One moment, things are calm and itineraries are set, only to be cancelled the next.

Despite the numerous cancellations and security restrictions placed on the Justice Audit team as a whole, we eventually all managed to make it to Dhaka to work together. With consultants participating from all across the globe (Brooklyn, Chicago, Islamabad, London, the Maldives, and Portugal) the ability to all sit in one time zone and work side by side was invaluable, and a relief to everyone’s sleep schedule.

Security concerns were high the entire time we were in Dhaka, so we did not spend much time outside of the office. The opportunity to do fieldwork and to learn more about Bangladeshi culture was regrettably missed, but the ability to see data flow in from all the sectors of the justice institutions, and to think critically about the story that data tells was a fascinating experience. It made me really stop and think about the role each discrete institution plays in a larger system, and the impact that system can have on the lives of individual citizens. As can be seen by the statistics emerging in Bangladesh, a poorly functioning system leaves citizens with few places to turn to seek justice and dispute resolution.

Bangladesh is fraught with the challenges of development. The population is massive; the legal system is archaic, and slow. Formal dispute resolution is hard to attain for anyone unable to pay exorbitant fees. And yet around every corner, we were able to draw analogies to parts of the American legal system that suffer similar frustrations.

We as students learned to view laws and legal proceedings through a more critical lens. The mentorship we received during the project from Professor Geraghty and our international colleagues was phenomenal. The project might not have taken shape quite as we expected, but the shape it did eventually take was abundantly educational.”

Students Rebba Omer, Katherine Klein, and Kelsey Green (as well as Dennie Byam, not pictured) joined Professor Tom Geraghty for two weeks in Bangladesh after having spent the first half of the semester drafting research papers and collaborating with the rest of the team to map out the steps of the Justice Audit.

Students and faculty at Northwestern Law are engaged in a multitude of international endeavors. The number and scope of these projects is nothing short of remarkable: global health, international justice tribunals, comparative constitutionalism, to name only a few. In the coming weeks and months I will report on some of these undertakings here on my blog—stay tuned!

Our annual commemoration of the life and work of Martin Luther King, Jr. includes a three-part lecture series, “Dismantling the Dream,” hosted at Northwestern Law. The third and final program, “The Wheels of Inevitability? An Examination of the Current Supreme Court’s Civil Rights Precedents,” will be held on Thursday, January 23, 2014, at 4 p.m. and will feature a panel of Northwestern Law faculty members, including Steven Calabresi, Clayton J. and Henry R. Barber Professor of Law; Erin Delaney, Assistant Professor of Law; and Miguel de Figueiredo, Visiting Assistant Professor. Leonard Rubinowitz, Professor of Law, will moderate.

The panel will examine the Roberts Court’s recent civil rights decisions and the current state of civil rights legislation. The program is open to the public, and CLE will be available. A reception celebrating the lecture series will follow in the Law School Atrium.

Please join us for what promises to be an engaging and interesting discussion of the appropriate role of legislation and the courts in enforcing civil rights.

The lecture series is co-sponsored by the Black Law Students Association and the American Constitution Society, and is presented by the 2014 DREAM Committee of Northwestern University School of Law and Feinberg School of Medicine. Additional information about other Martin Luther King, Jr. Celebration activities can be found on the Northwestern University website.

valuable post by Prof. Brian Leiter of U. Chicago, highlighting some key themes in the development of legal education. (We forgive Brian for fashioning this post as a bit of a commercial for UC). Principal point is absolutely right: Realist shift, exemplified well by the rise of law & economics in the past half century, is embedded into the way in which we teach our students. This is not only (or even principally) an intellectual contribution, but fundamentally a contribution to how our students will practice law in the real world — a point that often goes missing in the effort to bracket law’s intellectual discourse from our aim to provide “practice-ready” students.

To dig further into the developments of the first third or so of this era, I recommend a book by my former Texas colleague, David Rabban, Law’s History: American Legal Thought and the Transatlantic Turn to History.

Report on report from Hildebrand consultant on law firm health. Generally positive news as law firms show recovery during 2013. Report notes, however, that this recovery is unevenly distributed. Also notes that law firms are increasingly turning to mergers and lateral hiring to bolster their productivity and success.

Although it comes near the end of the report, one notable takeaway is the increase in alternative billing arrangements. It will be very interesting to see whether and to what extent this trend continues in the coming year. If so, this portends a fairly significant structural change in the economics of the large law firm.

The MacArthur Center is a “law firm like no other,” as the Chicago Daily Law Bulletin once reported. The Center was founded in 1985 by the family of J. Roderick MacArthur to fight for the civil and human rights of persons in the criminal justice system whose interests might otherwise not be vindicated. We have become one of the premier civil rights organizations in the United States by taking cases that others wouldn’t or couldn’t litigate.

In the past several years, the MacArthur Center has won over $45 million in settlements and verdicts in lawsuits in which the Center has represented persons who were convicted or charged with crimes they did not commit. More important than these monetary victories, though, is the work of Center attorneys in a variety of different cases that have systemically challenged features of the Illinois criminal justice system. For example, Center attorneys are currently engaged in litigation to reform the procedures for deciding whether to re-incarcerate persons accused of violating the conditions of parole. A recent MacArthur lawsuit helped end the use of closed circuit video to conduct bond hearings for persons arrested by the Chicago Police. In another case, we ended a Chicago Police practice of detaining witnesses against their will and holding them for questioning. We won the appointment of a Cook County Special Prosecutor to investigate the death of David Koschman by persuading the court that the original investigation may have been tainted by political interference. In earlier litigation, the Center attorneys persuaded the Cook County court to appoint a Special Prosecutor to investigate criminal charges against Jon Burge, a disgraced Chicago Police officer who systematically tortured African American suspects in his custody on the south side of Chicago. We have represented several of Burge’s victims and are currently using class action litigation to win hearings for all still-incarcerated persons with potential claims that their convictions rest on confessions that Burge tortured from them. Another MacArthur case helped to dramatically improve the handling of criminal appeals brought by indigent persons convicted within Cook County. The list could be expanded. None of these cases were “easy,” all were costly and labor intensive and most of them were handled without any expectation of a fee.

Following on the track record of success in Chicago, the MacArthur Center recently opened a second office in New Orleans, where our attorneys are working on similar projects, including pursuing a massive class action challenge to the treatment of prisoners in the Orleans Parish Prison and fighting for the rights of men and women on the Louisiana death row. We have plans to open a third office this fall at the University of Mississippi in Oxford.